Banda v. Kansas, State of et al

Filing 34

MEMORANDUM AND ORDER granting 19 Motion to Dismiss for Lack of Jurisdiction/Failure to State a Claim; granting 21 Motion to Dismiss; granting 25 Motion to Dismiss for Lack of Jurisdiction/Failure to State a Claim; granting 28 Motion to Dismiss for Lack of Jurisdiction/Failure to State a Claim. Signed by Chief Judge J. Thomas Marten on 12/27/2016. Mailed to pro se party Shona Banda by regular mail. (mam)

IN THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF KANSAS

SHONA BANDA,
Plaintiff,
vs.

Case No. 16-1075-JTM

STATE OF KANSAS, et al.,
Defendants.

MEMORANDUM AND ORDER
The possession of cannabis is illegal in Kansas. K.S.A. 65-4105(h)(1). The pro se
Complaint filed by Shona Banda alleges that, during a 2015 school presentation in Garden
City, Kansas about the effects of marijuana, her minor child told school employee Tyler
Stubenhoffer that Banda and other adults in the residence, were “avid drug users and there
was a lot of drug use occurring in his residence.” (Dkt. 20, at 3). According to Banda, she
uses marijuana or cannabis to treat her Crohn’s Disease. This information was relayed to
the Garden City Police Department (GCPD), which went to Banda’s house to investigate.
A warrant was issued and cannabis was removed from the property. The State of Kansas
commenced a criminal prosecution of the defendant on June 5, 2015. These charges include
endangering a child and manufacturing a controlled substance, and possession of
marijuana with intent to distribute. Banda’s minor child was found to be a child in need

of care and removed from the home.
Banda commenced this action alleging that, because many states have
decriminalized marijuana possession, she has “a fundamental right [to] medical cannabis.”
(Dkt. 1, ¶ 25). She alleges that the prohibition of marijuana possession in Kansas violates
her constitutional rights. The Complaint names as defendants Stubenhoffer and Garden
City Unified School District 457; the GCPD and its Chief, James Hawkins; the State of
Kansas; Governor Sam Brownback; and the Kansas Department for Children and Families
(DCF) and its Secretary, Phyllis Gilmore.
All of the defendants have moved to dismiss the action. (Dkt. 19, 21, 25, 28). The
court notes that in addition to their legal arguments, the DCF defendants have also
presented factual contentions in support of their motion, and that Banda has not denied
any of the following allegations of facts submitted by the defendants. Those facts indicate
that Banda’s son told the police that his mother produces marijuana extract pills which she
sells to clients at the rate of 20 for $100; that her residence is frequented by card games in
which all of the participants smoke marijuana, and that the son had been invited to smoke
as well.
Defendants DCF and Gilmore seek dismissal arguing subject matter does not exist
given the Rooker-Feldman doctrine, which supports dismissal of federal actions seeking to
overturn state court decisions, see Bolden v. City of Topeka, 441 F.3d 1129 (10th Cir. 2006));
the need for abstention under Younger v. Harris, 401 U.S. 37 (1971) in order to avoid conflict
with ongoing state court proceedings; and the “domestic relations exception” recognized
2

in Vaughn v. Smithson, 833 F.2d 63, 65 (10th Cir. 1989). With respect to Banda’s substantive
claim, they argue that Banda’s substantive due process claim fails because no court has
recognized any fundamental right to use marijuana, and in fact caselaw holds to the
contrary. See Raich v. Gonzales, 500 F.3d 850, 855 (9th Cir. 2007) (federal law “does not
recognize a fundamental right to use medical marijuana prescribed by a licensed physician
to alleviate excruciating pain and human suffering”). Finally, the defendants are protected
by Eleventh Amendment immunity.
Defendants Brownback and the State of Kansas also argue that Banda’s claims are
barred by sovereign immunity and Younger abstention. Further, they argue, Tenth Circuit
precedent precludes relief on the merits. See Rutherford v. United States, 616 F.2d 455, 457
(10th Cir. 1980) (“selection of a particular treatment, or at least a medication, is within the
area of governmental interest in protecting public health” and the government has
“authority to limit the patient’s choice of medication”).
Chief Hawkins and the GCPD have moved to dismiss under both the Rooker-Feldman
doctrine and Younger abstention, on the grounds that Banda has no substantive due process
right to use marijuana, and under the doctrine of qualified immunity.
Noting that the only allegation against the school involves the presentation of a drug
program and Stubenhoffer’s decision to send Banda’s child to the principal’s office, USD
457 and Stubenhoffer have moved to dismiss the action against them as impermissibly
vague and conclusory under Bell Atl. Corp. v. Twombly, 550 U.S. 544, 555 (2007), and barred
under the doctrine of qualified immunity. The defendants note that school officials have
3

an affirmative duty under Kansas law to cooperate with law enforcement agencies in cases
of a child in need of care. K.S.A. 38-2226(g).
Plaintiff Banda has filed no response to any of the defendants’ motions, all of which
present prima facie valid arguments for the dismissal of the action. Accordingly, the
present action is hereby dismissed pursuant to D.Kan.R. 7.4 and for good cause shown.
IT IS ACCORDINGLY ORDERED this 27th day of December, 2016, that the
defendants’ Motions to Dismiss, (Dkt. 19, 21, 25, 28) are hereby granted.

___s/ J. Thomas Marten______
J. THOMAS MARTEN, JUDGE

4